Conwell, and Another v. Smith, 4 Ind. 359

Roache, J. This was an action of trespass vi et armis, brought by Smith against Conwell, Fingland, Shoup, TJpdegraff, Tilney, and Hoskins. The writ was served on the three former; as to the three latter, the sheriff returned “not found.” Conwell, Fingland and Shoup, who were served with the process, appeared and plead to the action. Issues were made up on their pleas, and the parties went into trial. There was no suggestion of “not found” entered on the record as to Updegraff, Tilney and Hoskins.

After the plaintiff had closed his testimony, the defendants introduced TJpdegraff, Tilney and Hoskins, and pi’epared to swear them as witnesses. The plaintiff objected, and while his objection was under discussion, eaused another writ to be issued in the cause, and to be served by the sheriff on the three who had not been served with process. The evidence had tended to show the participation of TJpdegraff, Tilney and Hoskins in the commission of the trespass. \ The Court sustained the objection, and excluded the witnesses.

There was a verdict and judgment against Conwell and Fingland for 325 dollars, and against Shoup for one cent. The two former bring the case to this Court. When the writ is returned “not found” as to a portion of the defendants, two courses are open to the plaintiff. He may continue the cause till all the defendants are brought into Court, or he may, at his option, under the provisions of s. 31, p. 675, R. S. 1843, suggest the return of “ not found” on the record, and proceed to trial against those served. G. Holland and J. D. Howland, for the plaintiffs. J. Ryman, for the defendant.

If he adopt the latter, he may afterwards proceed by action against those “not found,” jointly or severally. In the case at bar, the plaintiff did neither; and the proceeding was consequently irregular. The effect of his going into trial under such circumstances, is, that as to those on whom the process had not been served, the writ abated. In the language of the opinion of the Court in Palmer v. Crosby, 1 Blackf. 139, “they were no more parties to the action than if their names had not been in the writ.” See, also, to the same point, Purviance v. Dryden, 3 S. & R. 402.—Gibbs v. Bryant, 1 Pick. 118.—Glidewell v.

McGaughey, 2 Blackf. 359. The result of these authorities is, that the witnesses were not, when introduced, any longer parties to the action, and not incompetent on that account. 3 Stark. Ev. 1063.— Ward v. Haydon et al., 2 Esp. C. 552. The current of authorities is, that under such circumstances they had no such an interest in the event of the suit as would exclude them. It is too remote and contingent. The old rule was otherwise. But the modern decisions, both in England, and the United States, establish this position. The objection only goes to the credit of the witness. Alderman v. Tirrell, 8 Johns.

R. 418.—Stockham v. Jones, 10 id. 21.— Wakely v. Hart, 6 Binn. 316. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.